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Page:Harvard Law Review Volume 1.djvu/397

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ment of any other chose in action. The assignee is merely the person designated to receive the insurance, and he acquires only the rights of the assignor, and is subject to all the defences which the insurers have or may have against the person originally insured. No element of the personal contract is violated, for it is of no consequence to the insurers who receives the insurance money, so long as they are free from the claims of the person originally insured.[1]

But where the property insured is sold, and the policy is assigned, an entirely different question is raised. In this case, the person originally insured has parted with his entire interest in the subject-matter of the contract. He can suffer no loss, for he had no interest in the property at the time of the loss. The insurers cannot indemnify him, for he has no interest which can be the subject of indemnity. That interest is in the assignee, a stranger to the contract, who is neither a party nor a privy to the original contract, and it is he who suffers the loss.[2] If, then, the contract can be assigned, seemingly the whole conception of a personal contract will be done away with.

This objection was clearly seen by Chief Justice Shaw in Fogg v. Middlesex Mutual Fire Insurance Co.[3] “After such sale” (says Judge Shaw, referring to the sale of the property insured), “if nothing more is done,—no surrender or exchange of the policy,—and the goods should be burnt, nobody could recover on the policy; not the original assured, for he has sustained no loss; the property was not his, and the loss of it was not his loss; not the purchaser, because he has no contract with the company. And although in popular language the goods are said to be insured against loss by fire, yet, in legal effect, the original assured obtains a guaranty by the contract that he shall sustain no damage by their destruction by fire. But in case of such sale or alienation of the insured property, the original assured having no longer any interest in the policy, except to claim a return of premium, if he will assign his policy or his contract of insurance to such purchaser, and the company assent to it, here is a new and original contract embracing all the elements of a contract of insurance between the assignee and

  1. Fogg v. Middlesex Mut. F. Ins. Co., 10 Cush. 337; Carpenter v. Providence Washington Ins. Co., 16 Peters, 495 (1842); Loring v. M’f’rs Ins. Co., 8 Gray, 28 (1857).
  2. Lynch v. Dalzell (supra); Sadlers Co. v. Badcock (supra).
  3. 10 Cush. 337.